Joseph A. Loftus - Page 14

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          liability.  Even if the Appeals Office considers a challenge to             
          the underlying tax liability where one of the two above                     
          situations obtains, the Court may not review the determination on           
          the issue because it was not properly part of the hearing.                  
          Sabath v. Commissioner, T.C. Memo. 2005-222; sec. 301.6330-                 
          1(e)(3), Q&A-E11, Proced. & Admin. Regs.; see also Behling v.               
          Commissioner, 118 T.C. 572, 578-579 (2002).                                 
               The Court has held that when the IRS submits in a Federal              
          bankruptcy proceeding a proof of claim for unpaid taxes, the                
          taxpayer has an opportunity to dispute his tax liability within             
          the meaning of section 6330(c)(2)(B).  See Kendricks v.                     
          Commissioner, 124 T.C. 69, 77 (2005); Sabath v. Commissioner,               
          supra.  Petitioner is therefore precluded from challenging his              
          liability for the additions to tax under section 6651(a)(2) in              
          this case.                                                                  
               In any event, petitioner, having admitted that the taxes               
          were not timely paid, testified that he chose to pay other                  
          creditors instead of paying his tax liabilities.  He provided no            
          documentary evidence on the issue, and his testimony fell short             
          of carrying his burden to show that there is reasonable cause for           
          his failure to pay timely.  See Higbee v. Commissioner, 116 T.C.            
          438, 446 (2001); sec. 301.6651-1(c), Proced. & Admin. Regs.                 
               Petitioner may also be asking for an abatement of the                  
          addition to tax.  Section 6404(f) allows for the abatement of an            
          addition to tax attributable to erroneous written advice by the             
          IRS.  Petitioner has not argued or proved that he received any              

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